6YS78e
Congress of the United States

Washington, BCE 20510

May 3, 2011

The Honorable Hilda Solis
Secretary

U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210

‘The Honorable Mary L. Shapiro
Chairman

Securities and Exchange Commission
100 F Street, NE

Washington, DC 20549

The Honorable Gary Gensler

Chairman

U.S. Commodity Futures Trading Commission
1155 21* Street, NW

Washington, DC 20581

Re: Definition of the Term Fiduciary

Dear Secretary Solis and Chairmen Shapiro and Gensler:

We write regarding the work the Department of Labor (the “Department”), the Securities
and Exchange Commission (the “SEC”), and the Commodity Futures Trading Commission (the
“CFTC”) are doing with respect to the fiduciary standards under the Employee Retirement
Income Security Act of 1974 (“ERISA”), the fiduciary standards under the securities laws, and
the business conduct standards for swap dealers and major swap participants under the Dodd-
Frank Act. We appreciate all of the steps the Department, the SEC, and the CFTC are taking to
protect American workers and investors,

However, some stakeholders have expressed a concern that the Department, the SEC, and
the CFTC may not be coordinating in areas where the agencies’ efforts overlap. In particular,
some are concerned that agencies may not be coordinating with respect to their projects
regarding fiduciary standards and the business conduct standards. We know you share our
commitment to cnsuring that different sectors of government are working together. Therefore,
we ask you to provide us with a better understanding of how the Department, the SEC, and the
CFTC are coordinating efforts. In particular, we are interested in steps the Department, the SEC,
and the CFTC have taken to share relevant information, avoid potential conflicts, and prevent a
duplication of effort.


Some stakeholders are also concerned that the Department’s proposed regulation defining
“fiduciary” under ERISA might have unintended effects, such as increasing administrative costs
or restricting the availability of investment education. Department staff has indicated a
willingness to address those concerns in the final regulation, and we appreciate that the proposed
rule expressly retains the status quo with regard to the investment education provided under
Interpretative Bulletin 96-1. Prop. Reg. § 2510.3-21(c)(2)(ii)(A) (stating that the “provision of
investment education information and materials within the meaning of 29 CFR 2509.96-1(d)”
will not be treated as investment advice under the tule).

As you move forward with this rule, we ask you to continue to solicit additional feedback
from stakeholders, particularly with respect to the rule’s effect on Individual Retirement
Accounts. For example, you could conduct additional outreach efforts, issue formal requests for
specific comments as part of an interim final tule, or in the event the Department fundamentally
changes its approach, issue a new proposal with respect to one or more aspects of the rule. We
think such feedback will ensure that the final rule provides significantly increased protections
while, at the same time, being both practical and administrable,

Finally, we belicve it is important for the industry to have adequate time to come into
compliance with the Department’s final regulation. Therefore, an extended effective date would
be appropriate for provisions of the regulation that involve significant behavioral or systems
adjustments,

We look forward to your response. Should you have any questions, please do not hesitate
to contact our staff.

_— Sincerely,

‘Tom Harkin, Chairman d aucus. Chairman
Committee on Health, Education, Cémmittee on Finance
Labor & Pensions

c wa hanson

Tim Johnson, @hairman Debbie Stabenow, Chairman
Committeen Banking, Housing Committee on Agriculture,
& Jirban Affairs Nutrition & Forestry

Oost. Corey,
in Bob Casey, Jr.

U.S. Senator


Claire McCaskill
U.S. Senator

Naren. E. ibrand
Kirsten Gillibrand
U.S. Senator

ei

Jon Tester
U.S. Senator